White House May Have Just ‘Won’ Its Long Fight Against The McGahn Subpoena

on April 13, 2018 in Washington, DC.
WASHINGTON, DC - APRIL 13: U.S. White House Counsel Don McGahn after the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. (Photo by Alex W... WASHINGTON, DC - APRIL 13: U.S. White House Counsel Don McGahn after the investiture ceremony for U.S. District Judge Trevor N. McFadden April 13, 2018 at the U.S. District Court in Washington, DC. (Photo by Alex Wong/Getty Images) MORE LESS
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The D.C. Circuit vacated an earlier decision in the House’s long-running battle to enforce a subpoena on Don McGahn, saying that the full court would consider the case.

A three-judge panel issued a ruling in August that would have gutted the House’s subpoena power, at least as it applied to its case for McGahn’s testimony, finding in a 2-1 ruling that the House Judiciary Committee could not enforce the subpoena absent a law explicitly giving it the authority to do so.

That came after the full court reversed an earlier decision by the same panel, holding that it did not have the authority to weigh in on the dispute.

Despite a relatively aggressive posture by the House, the White House has succeeded in delaying enforcement of the subpoena for more than a year, and now beyond the 2020 election. With the current Congress set to end in January, the subpoena itself is set to expire.

In taking it up, the full court asked the parties to address “whether the case would become moot when the Committee’s subpoena expires upon the conclusion of the 116th Congress.”

The case was born out of a subpoena that the House Judiciary Committee issued for McGahn’s testimony in April 2019. House Democrats sued to enforce the subpoena in August 2019, setting up a case that goes to the heart of Congress’s oversight authority and ability to hold the executive branch accountable.

Judges Neomi Rao and Gregory Katsas, both Trump appointees, are recused from the case. The full court’s decision to hear the matter means that the subpoena won’t be enforced before the election. Oral arguments are scheduled in the matter for February 2021.

The three-judge panel’s latest ruling was that Congress had failed to give itself any specific authority to go to court to enforce a subpoena.

“[W]e should not ignore Congress’s carefully drafted limitations on its authority to sue to enforce a subpoena,” the opinion read, while also alleging that the House had attempted to “bootstrap its way into federal court.”

That ruling is now vacated. It remains unclear when the issue of mootness will be resolved.

Read the filing here:

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  1. Not yet, the overruled panel judges were Griffith and Henderson. But Rao will get a few bites at the apple during the en banc hearing.

  2. Avatar for Akimbo Akimbo says:

    In taking it up, the full court asked the parties to address “whether the case would become moot when the Committee’s subpoena expires upon the conclusion of the 116th Congress.”

    “Um…Yes…we need an answer to this question especially if trump wins…DUH!” IANAL, but there has to be a way to say this.

  3. This usually happens when the full court is considering reversing the panel decision. My guess is the GOPers on the Court will want the Biden Administration to be subject to congressional subpoenas that can be enforced in court.

  4. “Good government” values aside, we can hope that their hopes are dashed when the Democrats keep the House and re-take the Senate.

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